Nation needs a remedy for malpractice mess

February 03, 2003|By Mona Charen

WASHINGTON - They did it in West Virginia, and now they're going to do it in New Jersey. Doctors are staging strikes.

They will of course continue to care for emergencies, but office visits and nonemergency surgeries will have to wait. No one is quite sure for how long. But doctors have been driven to this attention-getting extreme by an out-of-control malpractice system. To quote the old movie Network, they're mad as hell and they're not going to take it anymore.

The doctors are outraged because the malpractice lottery has made the practice of medicine a combat zone. It is making a few lawyers very rich but it is driving up costs, causing good doctors to abandon medicine and souring the relationships between physicians and patients.

The situation is particularly acute for obstetricians, whose malpractice insurance premiums have jumped by as much as 150 percent in four years. About one in 11 obstetricians has scaled back his or her practice to gynecology only to avoid these enormous costs.

In places like Las Vegas, it's getting difficult for pregnant women to find doctors willing to deliver babies, as malpractice premiums have jumped from $37,000 to $150,000 annually. Obstetricians are paying a heavy price because most malpractice suits in America are not about bad medicine, they are about bad outcomes. In obstetrics, more than in other fields, a certain number of disabled children and bereft parents is unavoidable. But trial lawyers seize upon every tragedy as an opportunity to enrich themselves.

While the number of medical malpractice suits has held steady over the past decade, the size of recoveries has not. The average jury award rose to $3.39 million in 1999 - a 79 percent increase since 1993.

The trial lawyers argue that malpractice suits improve medicine by going after the few bad apples in the medical profession and holding them accountable. But a Harvard Medical School study of 30,000 New York City cases found that more than 80 percent of the lawsuits filed were without merit - that is, no malpractice was found.

As Peter Huber, a tort reform advocate, has pointed out, about 20 percent of the lawsuits did not even involve an adverse event, yet these tended to be settled for an average cost of $29,000. (Fifty-seven percent of medical malpractice premiums pay for lawyers' fees.) The presence or absence of actual malpractice had nothing to do with the likely outcome of the case. Insurance companies settle with plaintiffs all the time in order to avoid the expense of litigation.

Not only are doctors passing along their higher costs to patients in the form of higher fees, they are also increasing overall medical spending by practicing defensive medicine - ordering tests by the bucketful and referring patients to specialists to cover themselves.

What is particularly galling to many doctors is that merely being named in a malpractice lawsuit is enough to raise your premiums, even if the lawsuit turns out to be dismissed as without merit and even if the doctor in question had nothing to do with the alleged malpractice. If an orthopedist saw a patient for a sprained wrist, and that patient later sued his partner for a poor surgical outcome on his knee, the first doctor is named in the lawsuit anyway.

What the striking doctors are asking for is a rule of reason. California has capped recoveries for pain and suffering at $250,000 and has limited attorneys' contingency fees. There is no limit to recoveries for lost wages, lost future earnings or medical expenses, including rehabilitation for plaintiffs. If such a system were adopted nationwide, critics of the current system argue, it could save the country more than $50 billion a year.

That's reason enough for reform. But an equally pressing reason is that curbing the lottery would be a victory for sobriety. Misfortune is a part of life, and Americans once faced it with fortitude, not lawsuits.